In recent years, the U.S. Environmental Protection Agency has intensified its enforcement focus under the Clean Water Act to mitigate the pollution of smaller bodies of water, large rivers, lakes and bays. In accordance with this intensified focus, the EPA has proposed and enacted several rules that substantially expand the EPA’s oversight over U.S. waterways, streams, wetlands and smaller bodies of water. The EPA’s focus on clean-water issues and expanding enforcement efforts has already impacted the oil and gas industry. The industry has, for example, been impacted by proposed and enacted regulations altering the EPA’s regulation of oil and gas operations, including hydraulic fracturing, under the Clean Water Act and enhanced scrutiny of environmental contamination claims. The EPA’s changing focus has also resulted in intensifying investigative measures and administrative penalties.
In 2014, the EPA proposed a major modification to regulations under the Clean Water Act, which may substantially impact the oil and gas industry by redefining the scope of “navigable waters” protected by the Clean Water Act. The “navigable waters” or “waters of the United States” rule, which was ultimately adopted and released in final form on May 27, revises the administrative definition of waters protected by the Clean Water Act to be consistent with several recent Supreme Court rulings and modern science. The rule specifically states that waters considered to be “jurisdictional” will be subject to the requirements under the Clean Water Act, while nonjurisdictional waters will largely be excluded from those requirements. In other words, jurisdictional waters must comply with the Clean Water Act’s standards, discharge limitations and permitting requirements, but nonjurisdictional waters may be exempt.
